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Table 1: Ultra vires, Repugnant,
Deficient and Redundant Provisions made under Orissa
RTI Rules vis-à-vis RTI Act 2005. Table 2: Critical Omissions in
the Orissa RTI Rules vis-à-vis RTI Act 2005. |
Table
1: Ultra vires, Repugnant, Deficient and Redundant Provisions made under Orissa
RTI Rules vis-à-vis RTI Act 2005.
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Sl.
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Matter
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Ultra
vires of
the RTI Act (reasons)
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Repugnant,
Deficient & Redundant vis-à-vis the RTI Act
(reasons) |
Recommendation |
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1. |
Rule-2
(e): Identity
of citizenship of an applicant (such as Voter Card or Passport etc. to be
produced before the PIO for his satisfaction about the citizenship status
of the applicant). |
Section
6(2) forbids the applicant from disclosing any personal detail to the PIO
except his contact address. Moreover, under Part II of the Constitution or
Citizenship Act 1955, an Indian is not provided with any citizenship card
unlike the practice in many other countries, which he can show to the PIO.
Pass Ports are held by a microscopic minority of the population, while
persons below 18 years have no voters’ identity card at all.
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To
be deleted. |
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2. |
Rule-3(1,2
&3) Appointment of PIOs/APIOs and
1st Appellate authorities. |
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Deficient,
because Section
4(1b-xvi) requires names and other particulars of the PIOs to be declared,
not designations only. |
Each
public authority to publish the list of PIOs/APIOs and Appellate
authorities by name and other particulars, in the format of Manual-7 of
GOI’s ‘Template for Information Handbook under RTI Act’ . |
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3. |
Rule-3(4)-
PIO to inform the Head of Dept about delay in furnishing information for
reasons beyond his control. |
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Repugnant
and Redundant, because a PIO may escape the obligation to provide
information timely as contemplated under the Act, just by writing to his
HOD. |
To
be deleted. |
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4. |
Rule
4(1)- Only a written
application in Form A having 11 Columns, and that too filled up correctly,
can be entertained. |
The
Act doesn’t provide for a compulsory, written application form. Rather
Sec.7(9) says that the information shall be provided in the very form in
which it has been sought. Sec.6(2) says that a person can make an oral
request, which the PIO is
bound to reduce to writing . |
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The
provision for a compulsory, written and complex Application Form should be
deleted. An application Form, if at all felt necessary, should be made
simple and optional. |
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5. |
Rule
4(2)- An applicant has to satisfy the PIO about his identity, before his
application is entertained at all.
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Section
6(2): an applicant shall not mention any personal detail except the
contact address. |
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To
be deleted. |
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6.
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Rule
4(1)- A non-BPL person has to append the proof of the application fee paid
in the form of Treasury Challan or Cash only. |
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Deficient,
because- how can a person who lives in a remote village, far-off from
Treasury, submit instantly the proof of the application fee? Again, for
payment in cash, one has to visit the PIO personally always. Why not other
modes of payment convenient to the citizens be allowed?
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A
variety of modes of payment such as money order, bank cheque/draft, postal
order and court fee stamps etc, besides the prescribed treasury Challan
and Cash, depending on the convenience of the applicant living in any part
of the State, should be allowed. |
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7. |
Rule
4(1)- The BPL persons are exempted from
Appl. Fee only and are required to pay other 2 kinds of fees,
exempted by the RTI Act. |
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Repugnant
and Deficient, because Sec-7(5)
exempts the BPL persons from Fees for Application, Cost of Information and
Cost of Electronic medium. |
The
provision to be added that BPL persons be exempted from the other 2 fees
(cost of information) and (cost of electronic medium) as mandated under
Sec-7(5) of RTI Act |
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8. |
Rule
4(1)- An application can be submitted through electronic means. |
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Repugnant
and deficient, because, firstly, Form-A provides no scope for the reply or
information to be provided through electronic means [vide Column 5(d and
e)], and secondly the Email IDs of PIOs/Appellate Authorities are not
publicized yet as required suo moto under Sec.-4 (1b-xvi) of RTI Act.
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Provision
for a PIO to supply the requested information through email to be made
along with the publication of the Email IDs of all the PIOs and Appellate
Authorities in the State. |
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9. |
Rule
4(1)- A BPL applicant has to submit his BPL card before the PIO issued as
per the latest BPL list, if he wants the exemption of appl. fee.
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Sec-4(1b-xii)
of RTI Act says that the list and details of beneficiaries of each subsidy
programme, under which the BPL category comes, must have been published
suo moto by the appropriate public authority through various means
including internet [Sec.4(4)] before 12th October last. Since
the BPL list is mandatorily available with the public authorities, they
can check at their end whether a person is a BPL or not, without having to
rely on the proof to be given by the applicant.
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The
provision for an applicant to produce his BPL
card is to be deleted, and alternatively the provision is to be made for
the PIO to check from the published list of BPL families about the BPL
status of a person claiming to be so.
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10. |
Rule4(2)-
PIO to intimate the applicant in Form B about the cost of providing
information |
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Repugnant
and deficient, because the Sec.7(3a) says that the PIO has to intimate the
detail, item-wise breakup of the total amount payable, whereas the Form B
provides for mentioning the total payable amount only.
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The
Form B should contain a format for mentioning the detail, item-wise
breakup of the total amount payable by the applicant.
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11. |
Rule
4(2), Form B, and Schedule 1(Part-II) require the payment for information
to be made in cash only. |
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Repugnant
and deficient, because, should a person of Malkangiri, for instance, who
applied through post or email to a PIO at Capital have to come all the way
physically to make the payment in cash only? |
A
variety of modes of payment such as money order, bank cheque/ draft,
postal order, court fee stamps and Treasury Challan besides Cash should be
allowed for payment, for the convenience of an applicant living in any
part of the State. |
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12. |
Rule
5(1): PIO to intimate rejection in Form C under Sec 7(1) of the RTI Act. |
Sec
7(1) of the Act says that an application can be rejected only on the
grounds of Sections 8 and 9, which are to be specified by the PIO. But the
Form C in stead of providing necessary space for mentioning the specific
grounds, out of the so many, as covered under Sec 8 & 9, simply says
in Col.(1) ‘It comes under the exempted category covered under Sec. 8
and 9 of the Act.’ |
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The
Rule should provide for the specific grounds pertaining to Sec 8 and 9, to
be mentioned by the PIO in the Form for intimation about rejection. |
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13. |
Rule
5 & Form C |
Sec
7(1) provides for rejection only on specific grounds covered under Sec 8
and 9, and doesn’t thereby allow the PIO to reject an application on
other grounds. But the Form B besides the Col-i (on Sec 8 &9),
provides for many extraneous grounds [viz. application not complete in all
respects (Col-ii), identity not satisfactory (Col-iii), available in
published material (Col-iv), prohibited under Sec 24-4(Col-vii), and for
any other reasons (Col-ix). |
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Form
C should be amended to provide for mentioning the specific grounds of
rejection as relevant to Sec 8 and 9 only. Besides the letter of rejection
should mention the details of appellate authority as required under Sec
7(8) along with the specific name and source of the published material
containing the requested information.
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14. |
Rule
6- Meeting of Recommendi-ng Committee for State Information Commissioners.
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Deficient,
because, it
doesn’t provide for publishing the recommendation of the Committee for
public comments, as required under Sec 24 of Orissa General Clauses Act
1937 and Sec 4(1c) of the RTI Act.
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A
provision to be inserted for publishing the recommendation of the
Selection Committee for Information Commissioners, to elicit public
opinion on the names so recommended.
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15. |
Rule
7(2,3,4) Fees for 1st
Appeal (40/-) & 2nd Appeal (50/-). |
Section
27(2) or any part of the RTI Act doesn’t provide for any fee to
accompany an appeal to be made, whereas the Orissa Rules have provided for
the same. |
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To
be deleted. |
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16. |
Rule
7(1, 3): It is the burden of an appellant to file his appeals to the
appellate authorities. |
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Repugnant
and Deficient, because as per Sec 5(2), it is the duty of the PIO to
forward both 1st and 2nd appeals to the respective
appellate authorities. |
Provide
for the PIO to forward the appeals to concerned authorities, if the
appellant wants so. Alternatively, the appellant can directly approach the
appellate authorities, for which no Form or Court Fee is at all required. |
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17. |
Rule
8- State Government having power to issue guidelines for implementing the
Act and Rules. |
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Deficient,
because, as per the Section 4(1c) of RTI Act, the public authority
concerned with the rule-making business under the Act should first of all
publicise the draft rules to elicit public opinion before finalising them.
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A
provision to be added to Rule-8 that every guideline to be made under the
Act or Rule should be first publicized for public comments before being
finally notified in the official Gazette.
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17. |
Rule-9 Penalties
against the defaulter PIOs under
Section 20 of RTI Act |
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Deficient,
because the Rule prescribes monetary penalty only as per Sec 20(1), but
misses to provide for penalty in terms of PIO’s service career as per
Sec 20(2). |
Provision
to be made for penalty against a defaulter PIO in terms of his service
career as required under Sec 20(2). |
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18. |
Rule
10- Cost
of damage caused to public property during sample collection, to be
collected from the applicant |
(1)
The Act nowhere envisages such an absurd and obnoxious provision which
compels the citizen applicant to pay for the damage caused to public
property, if any, by the PIO in course of his collection of sample for the
applicant. (2)
Rather the Sec 19(8b) provides for just the opposite, i.e. the PIO has to
compensate the citizen for any loss or detriment suffered.
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(1)
Rule-10 in its present form should be deleted. (2)
A new Rule-10 should be inserted to provide for the concerned PIO to
compensate the applicant citizen for any loss or detriment suffered by
him, as required under Sec 19(8b) of the RTI Act |
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19. |
Rule
11(2)- Register
to be maintained in Form G |
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Repugnant
& deficient, because
the Form G provides for transaction through Bank draft, while the Schedule
on Fees and Mode of Payment omits to mention it.
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(1)
Provide for a variety of modes of payment such as money order, bank cheque/
draft, postal order, court fee stamps and Treasury Challan besides Cash to
facilitate an applicant, and (2)
modify the Form G to include
the said variety of payment modes. |
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20. |
Rule-12,
Expenditure to be incurred on production of witness/evidence, to be
deposited in advance by the appellant before the Information Commission |
This
absurd, anti-citizen Rule is diametrically opposite to the Sec 19(5) and 20(1) of the Act, that says- in any appeal proceedings
the onus to prove one’s innocence vis-à-vis the complaint or appeal by
a citizen shall lie on PIO himself.
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(a)
Rule-12 in its present form should be deleted. (b)
Alternatively, the Rule-12 should provide for the mechanism of collecting
all the expenditure for court expenses from the defaulter PIO, as required
under Sec 19(5) and 20(1) of the RTI Act.
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21. |
Rule-13:
Realizing
the damage and penalties from the citizen’s landed property. |
This
very absurd and anti-people Rule is in absolute contradiction with letter
and spirit of RTI Act, which clearly stipulates that any damage or
penalty, if at all chargeable, is to be realized from the PIOs and public
authorities [Vide Sec 19(5), 19(8b) & 20(1)]
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To
be deleted. |
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Table 2: Critical Omissions in Orissa RTI
Rules vis-à-vis RTI Act 2005
[Since Section 27(1) of the RTI Act says that each appropriate Government has to make Rules to carry out the provisions of the Act, the Government of Orissa should draft the Rules on matters, which are not covered under the Rules published so far by them.]
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Sl. |
Provisions Under RTI which Orissa Rules
have omitted to address |
Recommendation for
incorporation into Orissa Rules |
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1. |
Section
4(1a) says that computerization
of the duly catalogued
and indexed data of all public authorities along
with their networking at national level be done in
such a manner as to facilitate a citizen’s easy access
to Information. |
The
Orissa Rules should specify a
time-limit within which to complete
the computerization and
networking of the data held by
public authorities. |
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2. |
As
per Section-4 (1b), the public authorities should have
by 12th October 05 completed the suo moto disclosure
of all the 17 categories of information for the
members of public to view and inspect them. |
Provide
for each public authority To
adopt the ‘Template for the Information
Handbook under RTI’
as prepared and published by
Govt. of India for the purpose.
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3. |
As
per Section 4 (1c ), every public authority should seek
the opinion of the concerned public while formulating
or taking a decision on every matter of public
policy. As per Section 4(1d), every public authority should
provide reasons for its administrative or quasi- judicial
decisions to affected persons. |
Provide
that no policy or decision of
a public authority shall be held valid,
if it were not finalized on the
basis of the public opinion. |
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4.
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As
per Explanation to Section 4(4) , each public authority
should provide for a variety of effective methods
for dissemination of proactive disclosures including
the arrangement for inspection of public offices
by the citizens. |
Provide
for each public authority to
make adequate arrangement for
the citizens to visit and inspect
their office, records, staff and
worksites in regard to suo moto
disclosures. Those who won’t
carry out this mandate of
the RTI Act be punished
under Sec 19 & 20 of Act.
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5. |
As
per Section 5, each public authority should designate
the PIOs, the duty of whom is also to receive
appeals for forwarding the same to the appellate
authorities, besides disposing of requests for
information. |
(i)
Designate and publicise PIOs by
name and detail contact address,
in the manner as given in
above said Template, (ii)
Provide for PIO/APIOs to receive
the appeals for forwarding
the same. |
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6. |
As
per Section 6(1b), the PIO is to assist a person, as and
where necessary to reduce his/her oral request for information
into a written one. |
Provide
for a PIO/APIO to assist a
person in reducing his/her oral request
into a written one. |
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7.
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As
per Section 6(3), the concerned PIO is to transfer an
application to another PIO with whom the requested
information is available. |
Provide
for a PIO to transfer the application
to another PIO with whom
the requested information
is available, within 5 days, with intimation
to the applicant. |
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8. |
As
per Section 7(1), the information concerning life & liberty
shall be made available within 48 hours of the application
so made. |
Provide
for a PIO to supply the information
concerning life or liberty
within 48 hours. |
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9. |
As
per Section 7(4), the PIO is to assist a disabled person
to access and inspect the sources of information.
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Provide
for the kind of assistance a
PIO has to extend to enable a disabled
person to access and inspect
the sources of information as
desired by him. |
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10. |
As
per Section 7(6), the PIO is to provide information free
of charge, as and when it is not provided within the
time-limit prescribed. |
Ensure
the provision to supply the requested
information free of charge,
when the PIO fails to provide
within the time-limit. |
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11. |
As
per Section 7(9), the PIO shall provide the Information
in the very form in which it has been sought
by the applicant, keeping in view the resources and
preservational safety of the record in question. |
Provide
for the PIO not to insist on
the specific form in which an applicant
has to place his request, but
to cater to his manner of requesting
for information. |
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12. |
As
per the proviso to Section 8(1), an information which
even comes under the exempted category, can
be provided to an applicant citizen, if that is given to
the Parliament or State legislature.
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Provide
for the PIO to consider the
accessibility of a piece of
information by a citizen in the light
of its admissibility to the legislature.
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13.
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As
per Section 8(3), any information on a matter or event
that took place 20 years before, can be given to an
applicant citizen. |
Provide
for the inventory- building
for the information concerning
the matters or events that took
place 20 years before, so as to provide
them to the applicants as and when
the latter want. |
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14. |
As
per Section 10, the part of a document containing the
exempted information can be severed from the other
part, which is not exempted from disclosure. |
Provide
for specific rules for the PIO to
sever the exempted part from a document
so as to supply the non-exempted
information to an
applicant. |
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15. |
As
per Section 11, in case of an application for a third party
information, the PIO has to issue notices to the third
party, and based upon the representation by the
latter, to decide on the admissibility of the said information
to the applicant. |
Provide
for the detail course to be adopted
by the PIO to dispose of applications
concerning third party
information. |
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16. |
As
per Section 15(1,2,3), the Information Commissioners
including the Chief shall be appointed by
the Governor on the recommendation of the Selection
Committee. As per Section 4(1c), every public
authority shall publicise all relevant facts while taking
a decision. Again, as per Section 4(1b-vii), every
public authority should have arrangement for consultation
with the members of public before adopting
any policy or decision.
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Provide
for publishing the names recommended
by the Selection Committee
for the constitution of Information
Commission to elicit public
views on the same. The Section
23 of General Clauses Act 1897
and Section 24 of the Orissa General
Clauses Act 1937 prescribe the
said procedure as
a legal obligation, besides the Section
4(1c) of RTI Act 2005.
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17. |
As
per Section 15(4), the State Information Commission
after being constituted, shall function | ||